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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Gibson & Anor v Davies & Anor [2002] EWCA Civ 1178 (16 July 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1178.html Cite as: [2002] EWCA Civ 1178

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWANSEA CROWN COURT
(HIS HONOUR JUDGE HICKINBOTTOM)

		Royal Courts of Justice Strand London WC2 Tuesday, 16th July 2002

Tuesday, 16th July 2002

1. LORD JUSTICE PILL: This is an application for permission to appeal against a judgment of His Honour Judge Hickinbottom, sitting at the Swansea County Court, the approved judgment being dated 17th April 2002. The claim was by Mr and Mrs Gibson. The judge set out the nature of the claim in the introductory part of his judgment. He states at page A16 of the bundle, having referred to other claims which had been made:

"Having abandoned these parts of their claim, the trial was restricted to the Second Claimant's claim to a right of way along the passage, and a right to park outside the stable, for the benefit of Ty Melyn, by way of prescription under Section 2 [of the Prescription Act 1832] by way of modern lost grant."

2. Mr and Mrs Gibson were represented at the hearing by counsel and well-known solicitors. I have looked up counsel in the Law List, and he is of ten years' call and is experienced.
3. The applicants have submitted a skeleton argument along with grounds of appeal and have appeared in court this morning. With the court's permission, however, their application has been made on their behalf by Mr John Binney. I have exceptionally allowed him to address the court. He has told me that he is a long-standing friend of Mr and Mrs Gibson. He knows a lot about the case. He has also told me that Mr Gibson would not feel able to present his case orally.
4. The judgment deals with the evidence which was called before the judge and shows conclusions adverse to Mr and Mrs Gibson. Their claim was dismissed. A number of witnesses were called. The judge refers to their evidence and he gives reasons for the conclusions adverse to Mr and Mrs Gibson, which he reached. I have to say that at the beginning of this judgment, because, as I have endeavoured to explain to Mr Binney, it is the trial judge who has the opportunity to hear the witnesses, to assess the credibility and reliability of their evidence and to reach conclusions upon it. He is in the best position to do that. This court will intervene and permission will be granted only if an arguable error of law is demonstrated (though of course an error of law may include the absence of a fair trial or the failure of a judge to give a fair hearing to the parties before him). When I put that to Mr Binney his reaction was that the claimants' legal team were "totally inept". He submits that they managed to lose the case and they were incompetent. He also submits that the defendants' counsel was offensive in his conduct of the case and also that the defendants' solicitors have, as Mr Binney puts it, culled the documents which were presented to the judge.
5. Those, of course, are serious allegations. There must, however, be something substantial to substantiate such allegations before permission to appeal on that ground can be granted. Indeed the skeleton argument does not complain about the conduct of Mr and Mrs Gibson's legal team. I raised what I have at the beginning of this judgment at an early stage because of the role of this court in exercising its appellate function.
6. It then emerges that there is dissatisfaction with the legal team. Nothing on the face of the record indicates that the case was incompetently conducted on behalf of Mr and Mrs Gibson. It is said that the claimants were not cross-examined fully. It is a matter for the defendants' counsel how fully he cross-examines. It is for the claimants' legal team to ensure that their case is sufficiently put before the judge. There is nothing on the record which indicates that the legal team failed to do that. If there were faults, there is nothing on the present information before this court that this court can do about it. There are, of course, other remedies open to litigants who are critical of the way in which their legal business has been conducted. In saying that I am not encouraging any such action, but it is important that the role of this court is understood. This court cannot intervene on the basis of unsubstantiated allegations, however strongly they are put, against the lawyers acting for an aggrieved party.
7. Several points have been put in elaboration of the skeleton argument. One is that the judge refused to make a site inspection. In my judgment, on the material before him, he was entitled to do that in his discretion. There is no obligation on the judge to conduct such an inspection, and indeed I find it difficult to see with the information the judge had before him what that view would have served. That was a matter for him.
8. It is submitted that the judge summarily dismissed the claimants' witnesses and relied excessively on one of the defendants' witnesses, Mr Dafydd Roberts, who was only 17 years old at the material time. Substantial time was given to this case and, as I have said, it is for lawyers for the parties to present the evidence and it is for the judge to assess it. I can find no basis for an arguable conclusion that that was not done.
9. It is further submitted that the judge declined to hear evidence of wheelchair users. It was a consequence of his decision, I am told, that wheelchair access could not be obtained. There are laws and rules which make provision for such access in public buildings and elsewhere. Rightly, in my respectful view, the law does attach increasing importance to the rights of disabled people. However this was a dispute between adjoining landowners, and I can see no basis upon which the evidence of wheelchair users could bear upon the issues which were raised between the parties in relation to the ground around Torbay Inn, which is in the village of Ffairfach, Llandeilo. The claimants have an interest in a property known as Ty Melyn, and I have the plan which has been annexed to the judgment and shows the proximity of the two properties.
10. It is submitted that a photograph which was before the judge was not a true photograph. I have been shown a letter, which was not before the judge, though dated a very considerable time before the hearing, which indicates that that photograph which was claimed to be an original (or a copy of an original) was not in fact such. The Department of Information Library Studies Aberystwyth University, by Dr John R Turner, have stated that the picture is a photocopy made from a half-tone printed copy and not from an original photograph. That does not in itself show that this photograph was other than of a little girl and a dog sitting on a wall, and does not disprove the witness's claim that she was the little girl. The further point is made that what it does show is that the photograph was not a one-off, but was of the type produced by a magazine. This point could have been ventilated before the judge. I see no merit in it. The witness said it was her in the photograph, and the point now raised about the half-tone printed copy does not appear to me to cast doubt on that. But that is not the only point. A point is that this court gives permission to appeal only if there is an arguable case. When points could have been made before the judge which were not, it is rare for this court to allow the fresh point to be argued in this court.
11. Mr Binney requests two days in which to put the case. He has not, in my judgment, identified an arguable legal point which means that permission to appeal can be granted in this case. If it were granted I could see no outcome other than an unsuccessful appeal, and that would be likely to involve the claimants, Mr and Mrs Gibson, in considerable costs.
12. In conclusion, Mr Binney submitted that this was a flawed judgment which contained many errors, that the judge truncated the case, and that there is a sensible and logical appeal which can be made. I have seen no grounds for concluding that it is arguable, for a fuller consideration whether over half a day or over two days, that the judgment of Judge Hickinbottom is to be reversed.
13. Accordingly, and for those reasons, permission to appeal is refused.
(Application refused; no order for costs).